The only sustainability conference designed and presented by retailers, for retailers. Title Sponsor

Transcription

1 The only sustainability conference designed and presented by retailers, for retailers. Title Sponsor

2 Environmental Compliance Tips and Enforcement Experiences From a Prosecutor s Perspective David J. Irey Supervising Deputy District Attorney Special Operations Unit San Joaquin County District Attorney s Office

3 Current, Constant Compliance is our Primary Goal

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5 Prevention vs. Reaction Benjamin Franklin said, An ounce of prevention is worth a pound of cure.

6 Do you Generate Hazardous Waste? We don t really generate HW We donate all our returned products, no hazardous waste is generated We send our hazardous materials to our Central Return Center for processing. Waste determinations are made there. We don t have any spills

7 We don t really generate HW

8 We donate all our returned products

9 We send our hazardous materials to our Central Return Center for processing...

10 We don t have any spills

11 What We Are Looking For: Previous violations Chronic violations Recalcitrant violators Short Timeline to obtain current COMPLIANCE

12 Where We Are Looking: (Thus, where YOU should be looking) Hazardous Waste Hazardous waste storage areas Claims return areas Absorbent from spills Building services/facility manager s area (paint, universal wastes) Garden Area (fertilizer/pesticides) Returned lead acid batteries Photo waste Auto repair Paint department Tires (Nitrogen)

13 Hazardous Materials Propane for forklifts or floor buffers Janitorial area (disclosable quantities of paint) Diesel or propane in back-up generator Cooling system chemicals Helium storage Universal Waste Aerosol Cans Fluorescent light tubes Used batteries Returned electronic items (including CRT s) Pharmaceutical Waste Pharmacy (identify what is sent for credit vs. not sent for credit)

14 PREVENTION Be ahead of the curve. Develop and use your own inspection guides. List possible hazardous materials/wastes and areas where they may be found Daily, weekly, monthly inspections. Also, we have seen that self-audits and/or outside audits help.

15 REACTION Work with Inspectors after the damage is done Enforcement underscores the message: Don t create an incident or there will be consequences

16 Advantages of Large Retailers Achieve compliance with the law faster Achieve compliance with the law across the state and across the nation Prevent many more incidents that can harm y people and the environment

17 Other Common Violations: Public Right to Know Law: California i H&S Emergency Response Plans Created to protect firefighter safety and property owners Easy to enforce by regulatory agencies Use as an indicator of unfair business practices

18 Other Common Violations: California H&S Underground storage tank laws and regulations: Created ed to protect against groundwater and soil contamination Many provisions are easy to enforce by regulatory agencies Use as an indicator of unfair business practices

19 Global Resolution Compliance Clean up Costs Penalties

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21 There Are Many Ways To Level The Playing Field PREVENTION is probably what those of you present today may want to focus on.

22 David J. Irey, Supervising i Deputy District i t Attorney Special Operations Unit San Joaquin County District Attorney s Office Office: 209/ David.Irey@sjcda.org

23 The only sustainability conference designed and presented by retailers, for retailers. Title Sponsor

24 Strengthening Compliance Through EMS Programs Mark Pollins Director, Water Enforcement Division OECA-USEPA

25 An EMS is an Incentive for Compliance The Office of Enforcement and Compliance Assurance (OECA) at EPA has a wide variety of tools available that act as incentives to the achievement of our ultimate goal: compliance with environmental laws and regulations.

26 EPA Supports the Use of EMS EPA supports Environmental Management Systems that t are appropriate to the needs and characteristics of specific sectors or facilities: Offer business and environmental benefits Should be tailored to suit the needs of individual companies or sectors Goal is to improve compliance with environmental laws and regulations

27 What is an EMS? The International Organization for Standardization (ISO) defines an EMS as part of the overall practices, procedures, processes and resources for implementing, achieving, reviewing and maintaining environmental policy. The focus is on management practices with a goal to insure compliance or to go beyond compliance and reduce an organization s overall environmental footprint.

28 EMS Provides Structure Insures that personnel training and standard operating procedures are in place to improve environmental performance. Adaptive to changing company needs. Must be ongoing: there must be planning, implementing, reviewing and improving of the processes that an organization takes to meet environmental goals.

29 Model EMS PLAN: DO: CHECK: ACT: Establish environmental goals Implement through training and operational controls Monitoring and Corrective Action Progress reviews and actions required to make needed changes to the EMS on a continuous basis

30 Focus of EMS is Continual Improvement EMS should help an organization improve compliance, find existing problems, correct those problems and prevent them from occurring in the future.

31 Homebuilders Cases EPA wanted to improve environmental compliance across the industry immediately and in the long term. In order to accomplish this goal, EPA looked to company-wide national injunctive relief. Key to achieving this was an EMS structure.

32 Focus on Corporate Responsibility Comprehensive company wide provisions. Establishment of three management tiers responsible for storm water compliance within the company. Requires Division level managers inspect each site quarterly. Requires designation of trained, qualified staff at every construction site.

33 Planning and Implementation on a National Level Builders were required to follow specific criteria to guide development of site specific practices for every building site (SWPPPs): Identify best management practices (BMPs) for each phase of construction; List inspection frequency and routine maintenance deadlines; dli Develop specific guides, including BMPs, for use by those overseeing each stage of construction; Provide instruction on SWPPP preparation.

34 Operational Change EPA required builders to use EPA approved dforms for pre-construction ti inspections, routine inspections and quarterly inspection reviews conducted d by division managers. All BMP deficiencies are to be documented and dated.

35 More Operational Change All builders must implement storm water training programs for managers and employees and orientation programs for consultants and contractors. Overall, the homebuilders injunctive relief model was built on an EMS approach: Plan/Do/Check/Act. In this situation, establishment of the EMS structure was not voluntary because it was done in the context of an enforcement action.

36 Role of Government Remains Important An EMS is not a guarantee of compliance with applicable laws and regulations nor does it supplant the role and responsibility of government in assuring compliance and responding to violations.

37 Why Should You Implement an EMS? Improve environmental performance Improve compliance Prevent pollution Reduce or mitigate risk Increase efficiency and consistency Improve image with regulators/investors/public Work toward a greener environmental footprint

38 The only sustainability conference designed and presented by retailers, for retailers. Looking at Retail Operations Through the EPA Enforcement Lens: Outside Counsel Perspective Donald J. Patterson, Jr., Principal

39 OVERVIEW OF RECENT RETAIL ENVIRONMENTAL ENFORCEMENT CASES

40 CONSTRUCTION - STORMWATER Retailer #1 (2001, 2004); Retailer #2 (2008) Lead Agency EPA/DOJ Penalties $1.3 million $3.1 million $1 million Implement comprehensive, corporate-wide programs to prevent stormwater pollution associated with new store construction

41 CLEAN AIR ACT Retailer #3 (2007) Distribution of imported Spooky String containing banned HCFCs Lead Agency EPA Region 2 Penalty - $120, Almost 800,000 Retailer #3 cans incinerated

42 CLEAN AIR ACT Retailer #4 (2008) State transport refrigeration unit law Lead Agency - California Air Resources Board Penalty - $30,150 $10, to Peralta Community College District to fund diesel education courses

43 RCRA-FIFRA Retailer #2 (2006) Improper display, handling, disposal of products such as pesticides and fertilizers at 13 stores in Connecticut, cited for failure to comply with hazardous waste, pesticide, stormwater management requirements Lead dagency Connecticut tdep Penalty - $99,000 SEP of $326,000, Connecticut t to use funds to further develop and implement outreach and compliance assistance strategies

44 RCRA/CWA/EPCRA Retailer #5 (2007) Voluntary disclosure of hazardous waste generator, SPCC, stormwater permitting, and EPCRA violations at 17 distribution centers in 13 states Lead Agency EPA Headquarters Penalty - $102,422 EPA stated Retailer #5 would have faced $1.6 million without voluntary disclosure

45 EPCRA Grocery Store #1 (2007) Failure to report release of nitric acid Lead Agency EPA Region 9 Penalty - $8,900

46 FIFRA Grocery Store #2 (2008) California supermarket sale of unregistered pesticides from Korea Lead Agency EPA Region 9 Penalty - $15,600

47 FIFRA Grocery Store #3 (2007) California market sale of unregistered pesticides from Japan Lead Agency EPA Region 9 Penalty - $171,600

48 FIFRA Grocery Store #1 (2007) Grocery distributor sale of an unregistered pesticide Lead Agency EPA Region 9/California/ Hawaii Penalty - $270,000

49 FIFRA Grocery Store #4 (2007) Grocery Store #4 stores in western U.S. selling cancelled pesticide Lead Agency EPA Region 9 Penalty - $40,700 $200, outreach SEP regarding pesticides sales

50 RCRA Retailer #6 (2008) Failure to properly identify and handle spent fluorescent light bulbs and other types of light bulbs at t2 stores Lead Agency EPA Region 2 Penalty - $49,725 Ensure that approximately 75 Retailer #6 stores in NY, NJ, and PR comply with the requirements for spent light bulbs

51 Methods to Avoid Enforcement/Limit Penalties/Risk A. Retail sector is a federal and state environmental enforcement target B. Goal for retailers is to put system in place to: 1. Achieve environmental compliance 2. Limit tort liability and reputational harm C. How: 1. Auditing 2. Voluntary Disclosure 3. Environmental Management Systems

52 AUDITING

53 Strategic and Practical Considerations Jurisdictional scope Single media vs. multi-media Internal vs. external auditors Single facility vs. multiple facility, destination facilities Period of review (e.g., current year vs. past five years) Thinking through the endgame Managing the audit-consultants, t lawyers, and information flow/privilege

54 Dealing with Audit Results Fix the violations Perform follow up audits Notify regulatory agencies if mandatory If not mandatory, consider voluntary disclosure EPA States

55 VOLUNTARY DISCLOSURE

56 Overview of the EPA Audit Policy History: first published December 22, The policy was amended, effective May 11, Purpose: to encourage regulated entities to voluntarily discover, disclose, correct and prevent environmental violations

57 9 Elements of EPA Audit Policy 1. Systematic discovery 2. Voluntary discovery 3. Prompt disclosure 21 days 4. Discovery independent of government or third party 5. Remedy harm and correct violation (within 60 days if possible) 6. Take steps to prevent recurrence 7. No identical or similar violations 8. Certain violations ineligible 9. Cooperation with EPA

58 Benefits of the EPA Audit Policy Potential benefits of voluntary disclosure and correction 100% mitigation of gravity-based penalties No recommendation for criminal prosecution EPA won t request audit reports Violations that result in serious actual harm or present imminent substantial endangerment to human health/environment are not eligible Eligibility for up to 75% mitigation

59 Analysis of the EPA Audit Policy Use of policy since inception over 3000 entities ii Do these numbers overstate the actual use of the policy? Independent assessment of disclosures 90% of violations are reporting/recordkeeping 70% are EPCRA violations 9.4% are RCRA violations

60 Recent Developments EPA adopted tailored incentives to encourage new owners to audit and disclose Interim Approach to Applying the EPA Audit Policy to New Owners, August 1, newowners-incentives.html

61 State Disclosure Policies/Incentives A. Protection from, or reduction in, penalties B. Creation of privilege il C. No incentive

62 ENVIRONMENTAL MANAGEMENT SYSTEMS Corporate environmental mission statement and policy Top management commitment Training Adequate staffing in environmental area Middle manager and employee incentives, evaluations and sanctions relating to environmental performance Development of, and integration of, environmental resources (manuals, protocols, etc.) Integration of environmental issues into corporate decision- making and management of change Periodic audits Ongoing measurement of environmental performance